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Matter of University of Medicine and Dentistry of New Jersey (School of Osteopathic Medicine)

June 19, 1996

IN THE MATTER OF UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, (SCHOOL OF OSTEOPATHIC MEDICINE), RESPONDENT-APPELLANT, AND COMMITTEE OF INTERNS AND RESIDENTS, CHARGING PARTY-RESPONDENT.


On certification to the Superior Court, Appellate Division.

Chief Justice Wilentz and Justices Pollock, O'hern, Stein and Coleman join in Justice GARIBALDI's opinion. Justice Handler did not participate. The opinion of the Court was delivered by Garibaldi, J.

The opinion of the court was delivered by: Garibaldi

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In the Matter of University of Medicine and Dentistry of New Jersey and Committee of Interns and Residents (A-113-95)

Argued March 26, 1996 -- Decided June 19, 1996

GARIBALDI, J., writing for a unanimous Court.

The issues on this appeal are: 1) whether the University of Medicine and Dentistry of New Jersey (UMDNJ), a public employer, violated the New Jersey Employer-Employee Relations Act (Act) when it refused to allow an intern's union representative to be present at an investigatory interview concerning the extent of discipline to be imposed on the intern for alleged incompetence; and 2) whether UMDNJ violated the Act when it refused to provide the intern's union representative with notice and information regarding the disciplinary action.

In order to be a licensed physician in New Jersey, a medical school graduate must complete a year of post-graduate training known as an internship. UMDNJ operates internship and residency programs at its medical schools. The Committee on Interns and Residents (CIR) is the union recognized as the majority representative that acts on behalf of UMDNJ interns and residents.

In 1989, CIR and UMDNJ entered into a collective negotiating agreement (CNA) governing certain aspects of the terms and conditions of employment of interns and residents. The CNA provides a mechanism to resolve disputes or "grievances." One alternative is for informal resolution wherein the grievant may request the presence of a mutually agreed on CIR representative. Article XIII of the CNA provides that no intern or resident may grieve any decision that is based on academic or medical judgment. However, Article XIV of the CNA enables a resident or intern who is disciplined or discharged for cause to institute a grievance action.

UMDNJ also supplies its interns with an Internship Manual (IM) that provides additional rules and regulations governing their conduct. Article Nine of the IM provides for corrective action against the intern if his or her professional conduct, actions and/or statements are disruptive or are reasonably likely to be detrimental to patient safety or the delivery of quality patient care. The IM does not provide for notice to CIR in this disciplinary process. Article Nine does not apply to "terms and conditions of employment" that are, instead, subject to the CNA. When an Article Nine complaint is made, the Dean or his or her designee conducts an investigation. At the Conclusion of the investigation, a written report is filed with a recommendation of no action, admonition, warning, probation, suspension, or termination. If there is an immediate threat to patient life or patient safety, the IM authorizes the administration to summarily suspend the intern.

Dr. Stephen Tenner, an intern at UMDNJ, was subject to discipline as a result of complaints alleging inadequate performance. Pursuant to Article Nine of the IM, Tenner was summarily suspended. No notice was provided to CIR. At Tenner's request, and on his behalf, a CIR representative attempted to discover why the CNA was not being followed and requested a formal statement of charges, access to Tenner's personnel file, and Tenner's reinstatement pending a hearing. UMDNJ's internship director informed the representative that the situation involved "academic or medical judgment;" therefore, pursuant to Article XIII, the CNA did not apply. Throughout the investigatory process, UMDNJ continued to refuse to allow CIR to participate, despite Tenner's request for a representative. UMDNJ contended that it had properly denied CIR's role in the Tenner investigation because the complaint related to Tenner's medical and academic activities and, therefore, Article Nine of the IM, rather than Articles XIII and XIV of the CNA, governed.

A committee recommended that Tenner be placed on probation for two months. Shortly after he completed probation, the administration received letters from six different doctors complaining about Tenner's continuing poor performance. Tenner was again summarily suspended. Once again, UMDNJ acted pursuant to Article Nine of the IM, rather than Articles XIII and XIV of the CNA. An investigation was convened but no notice was given to CIR. Following the investigation, Tenner's internship was terminated.

CIR filed an unfair labor practice charge with the New Jersey Public Employment Relations Commission (PERC), alleging that in forbidding CIR to represent Tenner at the two investigatory interviews and in withholding from CIR notice of and information pertaining to the disciplinary action taken against Tenner, UMDNJ violated certain provisions of the Act. CIR claimed that the Act itself obligated UMDNJ to provide notice to CIR and allow it access to information and the hearing. CIR did not seek any remedy for Tenner, but rather sought a prospective order requiring UMDNJ to provide those statutory rights in the future.

A PERC hearing examiner agreed with UMDNJ that the statutory right to participate in the hearing did not apply under the facts of this case, and that Article XIII waived all of those statutory rights. PERC reversed, finding that the statutory rights did apply to Tenner's situation and that Article XIII was not a waiver of those rights. Consistent with CIR's limited request for relief, PERC ordered UMDNJ to stop denying CIR the right to represent employees in investigatory interviews and denying CIR information about disciplinary actions.

UMDNJ filed a motion for reconsideration that raised, for the first time, a claim that interns were not employees under labor law. UMDNJ argued that the interns were students and, therefore, were not covered under the Act. UMDNJ also argued that Article XIII embodied its general right to academic freedom, and PERC's decision infringed on that right by allowing CIR to determine how UMDNJ operated its educational institution. PERC granted the motion for reconsideration and held that, although interns may be students, they are also employees who deserve the protections of labor law. PERC also upheld its earlier decision that there was no infringement on academic freedom. The Appellate Division affirmed, substantially for the reasons set forth in PERC's opinion. The Supreme Court granted UMDNJ's petition for certification.

HELD: The University of Medicine and Dentistry of New Jersey committed an unfair labor practice in refusing to provide notice and information to the Committee of Interns and Residents concerning the disciplinary proceedings against an intern and in refusing to allow CIR to attend the investigatory interviews. Because of UMDNJ's right to academic freedom, however, CIR's right to information and its ability to attend hearings is terminated as soon as it is clear that the disciplinary proceedings were initiated solely due to academic and medical concerns.

1. UMDNJ stipulated at the PERC hearing that it is a public employer and that CIR is a public employee representative within the Act, thereby conceding that interns and residents are public employees for the purposes of the Act. Moreover, UMDNJ entered into a CNA with CIR concerning the work performance and pay of interns. Without having raised below the issue that interns are not employees, without allowing CIR to develop a record contesting that assertion, and without having PERC assess the relevant evidence and arguments, UMDNJ's stipulation and its failure to raise this issue at the hearing preclude it from now challenging PERC's classification of Tenner as an employee. Thus, for purposes of this decision, Tenner is an employee. (pp. 12-16)

2. The National Labor Relations Act (NLRA) has been interpreted to provide an employee the right to have union representation at disciplinary investigations (the Weingarten right). Although the NLRA does not apply to State employees, PERC has adopted the Weingarten right in New Jersey. In view of the purposes behind the Act and the benefits of the Weingarten right, PERC's identification of the Weingarten right within the Act is a permissible construction of the statute. PERC has broad discretion in construing the Act and there is no legislative language or history contradicting PERC's Conclusion. Moreover, the Court is guided by federal precedent. (pp. 16-21)

3. Tenner would have been entitled to the Weingarten right during the investigation only if he reasonably believed that disciplinary action might result. If the decision to discipline the employee has already been made, then there is no right to union representation. The Weingarten right is triggered here because Tenner requested union representation at an investigatory interview that concerned the extent of discipline that was to be imposed on him. Furthermore, the Court declines to find that the CIR waived Tenner's Weingarten and other substantive rights by entering into the CNA with UMDNJ. It is unnecessary to consider whether Article XIII constitutes a clear and unmistakable waiver in view of the Court's Disposition of UMDNJ's academic-freedom argument. (pp. 21-26)

4. The rights guaranteed by the Act will be preempted when they infringe on important educational policies. CIR should not be able to interfere with UMDNJ's academic and medical decisions. Here, UMDNJ's academic-freedom argument fails because the enforcement of Tenner's Weingarten right would not have resulted in any interference with UMDNJ's academic judgment; CIR sought only to have a union representative accompany Tenner to his two interviews. CIR has the right to notice and information about pending discipline so that it may decide whether the discipline involves an academic or medical judgment. Thus, UMDNJ must notify CIR of any disciplinary actions and provide it with access to information about the case. However, as soon as it clear that the matter involves a truly academic or medical judgment, UMDNJ's interest in academic freedom predominates over the rights guaranteed by the Act. At that point, the union representative should leave the hearing and should expect to receive no further information. (pp. 27-33)

Judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDi's opinion. JUSTICE HANDLER did not participate.

The opinion of the Court was delivered by GARIBALDI, J.

In this appeal, we consider the interrelationship between the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -29, and the University of Medicine and Dentistry of New Jersey's (UMDNJ) right to academic freedom. Specifically, we must determine whether UMDNJ, a public employer, violated the Act when it refused to allow an intern's union representative to be present at an investigatory interview concerning the extent of discipline to be imposed on that intern for his alleged incompetence. A second issue is whether UMDNJ violated the Act when it refused to provide the intern's union representative with notice and information regarding the disciplinary action.

I

UMDNJ was created for the purpose of "establishing and operating programs of medical, dental, nursing, health related professions and health sciences education . . . ." N.J.S.A. 18A-64G-2. The University is comprised of several schools, one of which is the School of Osteopathic Medicine (SOM). UMDNJ operates internship and residency programs at its medical schools, including the School of Osteopathic Medicine. Interns and residents working for UMDNJ are unionized. The Committee on Interns and Residents (CIR) is the union recognized as the majority representative that acts on behalf of interns and residents.

In New Jersey, every student who completes medical school and wishes to be licensed as a physician must complete a year of post-graduate training known as an internship. N.J.S.A. 45:9-8(3). At the Conclusion of the internship, the intern's employer files an evaluation of that intern's performance with the State medical-licensing board, which determines whether to license the doctor to practice medicine. UMDNJ's internship program requires interns to work each month in a different practice area under the guidance of a different faculty member/doctor. The job responsibilities of interns include working with patients, attending lectures, completing various assignments, and teaching medical school students. They are graded on their performance each month, and they also may receive oral evaluations from the faculty member to whom they are assigned. Interns at UMDNJ earn at least $32,000 annually for their work. UMDNJ's School of Osteopathic Medicine operates an internship and residency training program for graduates of osteopathic medical schools at Kennedy Memorial Hospital and the University Medical Center.

A

In 1989, CIR and UMDNJ entered into a collective negotiating agreement (CNA) governing certain aspects of the terms and conditions of employment of interns and residents (collectively known as Housestaff Officers). In particular, the contract provides a mechanism to resolve disputes, or "grievances." The CBA defines "grievance" as an allegation that there has been

1. A breach, misinterpretation or improper application of the terms of this Agreement; or

2. An improper or discriminatory application of, or failure to act pursuant to, the written rules, policies or regulations of the University or statutes to the extent that any of the above established terms and conditions of employment which are matters which intimately and directly affect the work and welfare of Housestaff Officers and which do not significantly interfere with inherent management prerogatives pertaining to the determination of public policy.

[CBA, Article XIII]

The CNA provides for several different types of grievance resolution. In particular, the parties may agree to seek an informal resolution and avoid a formal adjudication of every allegation. Therefore, the CNA provides for an informal Discussion between the aggrieved intern and the Chief Resident or other hospital designee. "The grievant may, at his or her option, request the presence of a mutually agreed upon CIR representative during attempts at informal resolution." Ibid. Those unhappy with an informal resolution are permitted under the agreement to pursue a more formal process culminating in arbitration. Article XIII of the CNA provides that, during this formal process, "the Program Director or designee shall meet with the grievant and a representative of the . . . CIR for the purpose of discussing the grievance."

Article XIII of the CNA does, however, impose one important limit on this complaint procedure. "In no event shall matters concerning academic or medical judgment be the subject of a grievance under the provisions of this Article." Thus, no intern or resident may grieve any decision that is based on academic or medical judgment.

While Article XIII of the CNA does not allow complaints about actions based on medical judgment, Article XIV of the CNA discusses "disciplinary action" and provides:

Housestaff Officers may be disciplined or discharged for cause, however, these actions shall be grievable. . . .

The University shall give five (5) working days advance notice, in writing, of any intended disciplinary action to the affected Housestaff Officer and the CIR. The notice shall state the nature and extent of discipline, the specific charges against the Housestaff ...


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